LAW for ACC Lump sum compensation Review

Below is a copy and paste of the relevant law section from the report for the independent reviewer when I disputed an impairment assessment. There were two conflicting impairment assessments done for purposes of lump sum compensation for mental injury of post-traumatic stress disorder (PTSD). This overlaps with what I cut and pasted from the relevant law section of the District Court report, which was a rehearing.

I expect this is pretty generic for such a case. I have reformatted it slightly for clarity.

​I will also write a few blog posts about what this all meant for my case, in plain English. Hopefully, this will help others who decide to appeal against an ACC lump sum compensation decision. "The Act" is the Accident Compensation Act 2001. The first part makes reference to the Act. The rest is 'case law' (law estabilished from the outcome of former cases).
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Relevant law

A lump sum payment is an entitlement. Section 67 of the Act provides that an applicant who has cover for an injury and who meets the applicable eligibility criteria is entitled to the entitlement.

The eligibility criteria for lump sum payments are set out in Part 3 of Schedule 1 of the Act. In summary, an applicant is entitled to a lump sum payment if the applicant’s covered injury has resulted in a whole-person impairment of 10% or more (clause 54 of Schedule 1).

After receiving a certificate confirming that an applicant’s injury has stabilised,{1} ACC must arrange for a WPI assessment in accordance with the Injury Prevention, Rehabilitation, and Compensation (Lump Sum and Independence Allowance) Regulations 2002 (the Regulations). The Regulations require the assessment to be carried out in accordance with the AMA guidelines and the associated ACC user handbook (regulation 4 of the Regulations).

The assessment results in a WPI rating, which is expressed as a percentage figure. The rating can only take into account impairment that has been caused by a covered injury, so the assessment often identifies an overall rating before making a deduction for any impairment that has not resulted from a covered injury, leaving a percentage figure that is used to calculate the applicant’s lump sum entitlement.

A WPI assessment is undertaken by a properly qualified medical practitioner. There must be clear and compelling evidence that the assessment has been made incorrectly or that the criteria of the AMA Guides has not been followed before the courts will question the assessment by the assessor. {2}

A summary of the law as it relates to lump sum payments was recently set out by Judge McGuire in Scott v ACC: {3}

     [13] In order to assess Whole Person Impairment under s 59 of the Accident Compensation Act 2001, ACC uses the American Medical Association Guides to the evaluation of permanent impairment (4th edition). The Injury Prevention, Rehabilitation and Compensation (Lump Sum and Independence Allowance) Regulations 2002 provide for this. …

     [18] Judge Beattie stated in Robinson: {4}

       [23] The jurisprudence in the field of Lump Sum/Independence Allowance assessments is now well settled, and it is the case that the assessments upon which the respondent based its decision to provide for Lump Sum [compensation], must be shown by clear and cogent evidence to be flawed in the way in which the AMA Guides have been interpreted or where it is shown that all aspects of injury were not considered. The mere expression of an alternative opinion is not sufficient.

In Williams v ACC, Judge McGuire affirmed that: {5}

     it is not for the court to form an opinion as to whether or not the AMA Guides have been correctly applied: this is the province of duly qualified medical practitioners. The Court must rely on the evidence of the medical practitioners in this regard.

To find a WPI assessment was flawed, not because the AMA Guides have not been properly applied, but because not all aspects of an injury were considered in the assessment, does not necessarily always require contradictory or competing opinion from another medical professional. As Judge Beattie noted in Fowler v ACC: {6}

     Whilst the court recognises that the assessments of duly-appointed specialists is to be accepted in the absence of cogent evidence to the contrary, it is equally the case that the court, being the final arbiter, is entitled to look at the assessment objectively and to determine whether it does in fact amount to a proper and correct assessment on its face.

In respect to competing assessments, in Gerard v ACC, Judge Walker held:{7}

     A mere difference of opinion between specialists is not sufficient to unseat the advice of an appointed assessor: there needs to be some compelling factor which makes it clear that the assessor has overlooked some material factor. 

Relevant to the issue of competing assessments, in Gilbert v ACC Judge Beattie found:{8}

     as a matter of law, that the assessment made by (an assessor) is to be regarded as being the measure of impairment of the covered personal injuries as at the day of that assessment. The fact that there may have been a deterioration in the appellant's medical condition since that assessment does not affect the validity of that assessment.

There are therefore two grounds where a WPI assessment can be set aside: where there is evidence the AMA guides have not been correctly applied (which requires the evidence of duly qualified medical practitioners); or where it can be shown by objective fact that there is an omission in the assessment, such as where all aspects of an injury were not considered.

The onus is on {the appealant} to show that, based on credible expert evidence, it is more likely than not the impairment assessment on which ACC based its calculation of lump sum compensation was flawed. {9}

In Holmes v ACC, Judge Barber held:{10}
It will almost always be impossible for the appellant, in the absence of contradictory medical opinion from a recognised expert, to show that an assessment process out by a duly appointed and authorised assessor has been conducted contrary to the requirements of the handbook and guides, and to set it aside on the basis, essentially of submission alone.

It is not enough for {the appealant} to provide {their} own self-analysis.{11}

Footnotes

{1} Clause 52 of Schedule 1 of the Act. An assessment can also be carried out if two years have passed since the date of the personal injury, even if the applicant’s injury has not stabilised.
{2} King v Accident Compensation Corporation [2004] NZACC 4 at [13]. The courts have applied this principle to the current Act. See, for example, Scott v Accident Compensation Corporation [2020] NZACC 9. {3} Scott, above n 3
{4} Robinson v Accident Compensation Corporation [2008] NZACC 121.
{5} Williams v Accident Compensation Corporation [2021] NZACC 27 at [41].
​{6} Fowler v Accident Compensation Corporation [2005] NZACC 367 at [22].
{7} Gerard v Accident Compensation Corporation [2020] NZACC 80 at [23].
​{8} Gilbert v Accident Compensation Corporation [2009] NZACC 166 at [5].
{9} Monaghan v Accident Compensation Corporation [2011] NZACC 339 at [38]; and W v Accident Compensation Corporation [2004] NZACC 284 at [7].
{10} Holmes v Accident Compensation Corporation [2009] NZACC 111 at [71].
{11} In Irons v Accident Compensation Corporation [2012] NZACC 108 at [21] Judge Ongley noted an appellant's own belief is not persuasive because it does not have the authority of medical expertise.